Citation Nr: 21067135 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-50 315A DATE: November 3, 2021 REMAND Entitlement to service connection for a spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability, to include as secondary to a right knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1999 to November 2003. This matter comes to the Board of Veterans' Appeals (Board) from a March 2016 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, confirmed and continued prior denials of the Veteran's service connection claim for back pain and bilateral knee pain conditions. In May 2020, the Board reopened the service connection claims (granting the new and material evidence aspect of this appeal), and remanded the underlying service connection claims for further evidentiary development. After carefully considering this matter, and for reasons expressed immediately below, the Board finds that this case must again be remanded for further development. The Board sincerely regrets the delay associated with this remand but finds that a remand is necessary to ensure that the Veteran is accorded full compliance with VA's statutory duty to assist. Pursuant to the Board's May 2020 remand, the Veteran's Tricare medical treatment records were obtained, and the Veteran's claims file was examined in August 2020 by a qualified examiner to provide a medical opinion regarding the claimed spine and bilateral knee conditions. Unfortunately, the Board finds these medical opinions to be inadequate. While the medical reports provided negative nexus opinions, they did not discuss the Veteran's statements regarding the onset of her conditions, nor did it discuss pertinent evidence found in the claims file. Spine Condition The August 2020 VA examiner opined that the Veteran's spine condition was less likely than not related to, or aggravated by, her active duty. The examiner explained that the report of medical history and separation examination did not reveal a history or physical examination findings for ongoing acute or chronic treatment of a back condition. While the March 2016 VA examination diagnosed a lumbosacral strain and IVDS, medical records do not reveal continuous or ongoing medical treatment or aggravation of an acute or chronic back condition during the time of separation from service to the present day. Thus, the examiner concluded that the Veteran's back condition occurred after discharge from military service. Importantly, however, the August 2020 VA examiner did not discuss the Veteran's contention that her spine condition was incurred during active service due to an unknown in-service injury. Indeed, the examiner did not discuss the service treatment records that show the Veteran reported low back pain on several occasions including in June 2000, November 2000, May 2002, and June 2002. Further, the service treatment records included an October 2003 examination that revealed the Veteran's lumbar spine had a flexion of 90 degrees with a 5-degree deficit, extension of 30 degrees with a 5-degree deficit, and right and left lateral motion of 35 degrees with a 5-degree deficit; one reported spasm; a negative straight leg raise; and a gait that was slightly antalgic to the left secondary to foot pain. Instead, the examiner relied solely on the absence of reports in the record as the basis for the opinion. Accordingly, the Board finds the August 2020 examination to be inadequate for adjudication purposes because the examiner failed to consider the Veteran's lay statements and service treatment records in rendering an opinion. Therefore, a remand is necessary to obtain another medical opinion. Bilateral Knee Condition The August 2020 VA examiner also opined that the Veteran's bilateral knee condition was less likely than not incurred in, or caused by, active service. The examiner explained that the report of medical history and separation examination did not reveal a history or physical examination findings for ongoing acute or chronic treatment of a bilateral knee joint condition. The examiner found that medical records did not reveal continuous ongoing medical treatment or aggravation of acute or chronic right and left knee joint condition from the time of discharge from active military service to present day and concluded that the right and left knee joint condition occurred after discharge from military service. Importantly, however, the examiner did not acknowledge the Veteran's contentions that she injured right knee during a field exercise at Fort Bliss in approximately 2001 and, in compensating with her left knee, she then developed left knee pain. See March 2016 VA examination. Instead, the examiner relied solely on the absence of reports in the record as the basis for the opinion. Thus, the Board finds the August 2020 examination to be inadequate for adjudication purposes because the examiner failed to consider the Veteran's lay statements in rendering an opinion. Also, the Board finds that the Veteran's statement regarding the onset of her left knee condition includes a claim for secondary service connection. As such, a remand is necessary to obtain another medical opinion. Given the inadequacies of the August 2020 VA examination, a remand for corrective action is necessary, to include providing a new medical opinion that adequately addresses the current nature, extent, and etiology of the Veteran's claimed spine and bilateral knee conditions. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Accordingly, these matters are therefore REMANDED for the following action: 1. Obtain a medical opinion from an appropriate medical examiner to determine the nature and etiology of the Veteran's spine condition. The claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. The examiner should opine: Is it at least as likely as not (50 percent or greater) that the Veteran's spine disability onset in, or is otherwise related to, her active duty? In answering this question, the examiner should discuss (1) the Veteran's contention that her spine disability was incurred during her active service due to an unknown in-service injury and (2) the relevant medical evidence contained in the service treatment records. 2. Obtain a medical opinion from an appropriate medical examiner to determine the nature and etiology of the Veteran's right knee condition. The claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. The examiner should opine: Is it at least as likely as not (50 percent or greater) that the Veteran's right knee disability onset in, or is otherwise related to, her active duty? In answering this question, the examiner should discuss the Veteran's lay statements that her right knee was injured during a field exercise at Fort Bliss in and around 2001. 3. Obtain a medical opinion from an appropriate medical examiner to determine the nature and etiology of the Veteran's left knee condition. The claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. The examiner should opine: (a.) Is it at least as likely as not (50 percent or greater) that the Veteran's left knee disability onset in, or is otherwise related to, her active service? (b.) Is it at least as likely as not (50 percent or greater) that the Veteran's left knee disability is proximately due to (or was caused by)or aggravated (made worse)her right knee disability? In answering these questions, the examiner should discuss the Veteran's lay statement that due to a right knee injury, she compensated with her left knee and thus, developed left knee pain. 4. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Appellant until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.